Percy, Derek Ernest, In the matter of a major review
[2004] VSC 67
•2 March 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 1469 of 1998
IN THE MATTER OF the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
and
IN THE MATTER OF a Major Review of DEREK ERNEST PERCY
JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25, 26, 27 November 2003; 12, 20, 30 January, 1 March 2004 | |
DATE OF JUDGMENT: | 2 March 2004 | |
CASE MAY BE CITED AS: | IMO Derek Percy | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 67 | |
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Crimes mental impairment major review – Reviewee detained in custody in a prison – Whether court satisfied that release on a non-custodial supervision order would seriously endanger the safety of members of the public – Failure of Reviewee to give evidence – Relevant principles – Whether there should be suppression of publication – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss.35, 38C, 75 – Supreme Court Act ss.18 and 19.
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APPEARANCES: | Counsel | Solicitors |
| For the Attorney General | Mrs J. Morrish, Q.C. | Victorian Government Solicitor |
| For the Director of Public Prosecutions | Mr Lewis | Solicitor for Public Prosecutions |
| For the Reviewee | Ms C. Randazzo, S.C. | Victoria Legal Aid |
| For the Department of Human Services | Mr G. Mullaly | Russell Kennedy |
| For “The Age” and “Herald‑Sunday” | Dr T. McEvoy | Minter Ellision |
HIS HONOUR:
This proceeding comes before the court upon a major review under s.35 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”).
The subject of the review is Derek Percy (“the reviewee”), who on 9 April 1970 was found by a jury to be not guilty of a charge of murder on the grounds of insanity. On 20 July 1969 the reviewee, who was then aged 20 years, killed Yvonne Tuohy, a 12 year old girl, who had been abducted by him near the beach in the vicinity of Warneet in Victoria. He was detained at the Governor’s pleasure from 1970 and until 1998 when the Act came into effect.
Section 35 of the Act provides that major reviews are to be undertaken by the court in respect of a person who is the subject of a supervision order and has been found not guilty of a charge of murder, at least three months before the expiry of 25 years after the date of the making of the order.
Of course, in the circumstances of this particular case, and by reason of the Act coming into effect in 1998, the custodial supervision order applicable to the reviewee was a deemed order. Eames J (as he then was) undertook the first major review of the deemed supervision order relating to the reviewee in 1998[1]. He confirmed the custodial supervision order. The Act was amended in 2002 to provide that major reviews are to take place at intervals not exceeding five years for the duration of the order following the expiry of the 25 years. Thus this is the second major review of the custodial supervision order relating to the reviewee under the Act.
[1]See [1998] VSC 90.
Section 35(2) of the Act provides that the purpose of a major review under the Act is to “determine whether the person subject to the order is able to be released from it”.
It is not contended before me by any party that the reviewee should be released from the custodial supervision order. Indeed, the submissions made by both the Attorney‑General, through his counsel, Mrs Morrish, QC, and by the reviewee, through his counsel, Ms Randazzo, SC, are that I should confirm the custodial supervision order and, in doing so, confirm that the reviewee is to continue to be held in custody in a prison.
I might add that the latter submission by Ms Randazzo was made close to the end of the proceeding and after all of the evidence was before me. Prior to that time it was the contention of Ms Randazzo on behalf of the reviewee that he should be transferred from prison to the Thomas Embling Hospital. I make it clear that I draw no unfavourable inference against the reviewee in relation to what was a change of mind in relation to that matter at the conclusion of the evidence.
However, notwithstanding the unanimity of the submissions made before me as to what course I should follow, the Act makes it clear that I am required to be satisfied of certain matters before making such an order. By s.35(3)(a)(i) the Act provides that, if the reviewee is subject to a custodial supervision order at the time of a major review, the court “must vary the order to a non-custodial supervision order, unless satisfied on the evidence available that the safety of the person subject to the order or members of the public, will be seriously endangered as a result of the release of the person on a non-custodial supervision order”.
For reasons to which I refer in more detail below I am satisfied that members of the public will be seriously endangered as a result of any release of the reviewee on a non‑custodial supervision order. Accordingly, it is my intention to make orders confirming the custodial supervision order to which the reviewee is subject at the moment and, furthermore, to confirm his commitment to custody in a prison.
Suppression of Publication of Proceedings.
However, before turning to that matter further, it is necessary for me to deal with the question of whether or not any order should continue to be made under s.75 of the Act, which relates to the suppression of publication of the proceedings or part of the proceedings.
This proceeding remains the subject of orders made pursuant to s.75 of the Act, which orders were made by Eames J on 11 September 1998. Those orders provided that:
“No person should publish or cause to be published or broadcast by means of television or other means any written or printed material made at any time by the reviewee or to make any comment upon the material”.
At the commencement of the hearing before me on 25 November 2003, Ms Randazzo, who, as I have said, appears for the reviewee, sought a much wider order than that previously imposed in this proceeding by Eames J. Indeed, what she sought was what might be called a “blanket suppression order” which would have the effect that no evidence given before me or any submission or other matter in the proceeding could be the subject of publication.
Ms Randazzo called Dr Lindsay Thompson, a forensic psychiatrist, to give evidence on the issue of suppression of publication before me. Dr Thompson stated in the course of giving her evidence that there were three issues which, in her opinion, arose as to why there should be a total suppression of the matter before the court.
It was stated by her that the first issue was the stigma that people with mental illness face, particularly in association with an offence such as that of which the reviewee was found not guilty on the grounds of insanity. She stated that her concern was that linking the case of the reviewee to issues of mental disorder through the press and the media would heighten the stigma that people with mental illness already face in the community.
Dr Thompson’s second issue of concern was in relation to the suggestion that the reviewee would be transferred from prison to the Thomas Embling Hospital. She said that the fact that the reviewee, in her opinion, is a person who is manifestly different from patients currently in that hospital, the vast majority of whom suffer from a major mental illness such as schizophrenia or depression, might make it more difficult to rehabilitate such patients. She relied upon the public perception which might be created as to what takes place at the Thomas Embling Hospital by reason of press publicity of the transfer of sex offenders who suffer from no major illness being accommodated in the forensic psychiatric hospital.
In addition, Dr Thompson expressed concern for the safety of the reviewee himself in that publicity of the serious offence committed by him might attract retribution in prison before any transfer to the Thomas Embling Hospital.
Dr Thompson further expressed concern that her consistent experience with media exposure regarding mentally disordered offenders over a period of 10 years was most negative and that, if publication was permitted, the press would exploit the sensational aspects of the case involving the reviewee, to the detriment generally of persons who suffer from serious mental illness and, in particular, to those who are patients at the Thomas Embling Hospital.
Professor Mullen, the Clinical Director of Forensic Medical Health Services in Victoria, later gave evidence before me and expressed similar concerns. In particular, he stated that he would have concern for the safety of the reviewee in the event that he was to be transferred to the Thomas Embling Hospital. Furthermore, he expressed a concern that the publicity associated with this particular reviewee might well have the effect of misrepresenting the work done at the hospital in the eyes of the public. Furthermore, he expressed concern that a serious misunderstanding of what work is done at the hospital might be created by an association between the hospital services and the provision of treatment for a serious sexual offender.
He expressed the opinion that such a misunderstanding would be damaging to the work done at the hospital and in consequence would be damaging to the rehabilitation of patients at the hospital.
In addition to the above matters about which direct evidence was given before me, I had concern about the effect of publicity insofar as it might affect the family of the child who died at the hands of the reviewee and about the effect upon others closely associated with that event. These concerns were heightened by the material filed with the court by the victims. I do not intend to detail those concerns in this extempore statement of my reasons but reference may be had to the statements filed by victims pursuant to s.38C of the Act, and to the evidence of the manager of the Witness Assistance Service conducted by the Director of Public Prosecutions, Ms Anne Davie, which appears at p.336 to p.354 of the transcript of evidence given before me. That evidence was given in open court and the media have had available to them the transcript of the proceedings.
However, in consequence of the concerns that I had, particularly in relation to the victims, and in consequence of the issues raised before me at the commencement of the hearing, I concluded at that time that it was appropriate to make a “holding order” under s.75 of the Act until such time as I could give the full consideration which was required to the question of whether it was in the public interest to suppress any evidence, report, document or other information given or put before the court in the course of the proceedings. Thus I made an order suppressing the publication of any evidence given in the proceeding until further order so that all affected parties could be given an opportunity to be heard on the matter.
In relation to the further continuation of any suppression order, I have heard submissions from Ms Randazzo, on behalf of the reviewee, Mrs Morrish, on behalf of the Attorney‑General, and Dr McEvoy, of counsel, who appeared before me on behalf of the publishers of The Age and the Herald-Sun newspapers to make submissions in relation to the matter of suppression.
As indicated by me to counsel before the handing down of these extempore reasons, I will not refer to the issues before me in relation to the suppression application and the application in opposition in great detail.
However, in summary, the submission made by Ms Randazzo is that a blanket suppression order should be made pursuant to s.75 of the Act in the public interest. She submits, first, that the criteria and considerations relevant to s.75 of the Act extend the operation of the Act by comparison with ss.18 and 19 of the Supreme Court Act. She submits that the term “public interest”, where it appears in s.75 of the Act, includes the public interest in the reviewee’s rehabilitation not being deflected or defeated, and she submits that the issue of rehabilitation of the reviewee is such that success of any treatment will depend primarily upon the reviewee disclosing the existence of sexual fantasies, whether currently held by him or not. She submits that at some stage in the future this issue of disclosure by him may become the subject of evidence and success in rehabilitation will be hampered by the negative impact of widespread publicity.
Ms Randazzo relies upon the evidence given before me by Dr Thompson and Professor Mullen to the effect that there are concerns about the safety of the reviewee which are relevant to the issue of public interest in the event that there is widespread publicity in relation to this application. She relies further upon the evidence given by Professor Mullen and Dr Thompson that the stigma associated with mental illness, which is a matter of concern to them, will be exacerbated by widespread publicity of the nature previously given to the review and to the reviewee and to the victims of the reviewee on the last occasion that this matter was before the court, that is, before Eames J in 1998. In particular, she submits that the nature of the press coverage of the application before Eames J was so sensationalised, inaccurate and distorted that the media cannot be relied upon to accurately represent what has occurred in this application.
Again in summary form only, the submissions made on behalf of the Attorney-General by Mrs Morrish are that the existing order made by Eames J on 11 September 1998 should remain in full force and effect.
It should be noted that Dr McEvoy makes no submission on behalf of his two clients that the order of Eames J of 11 September 1998 should be set aside.
In my view, there is no basis to set aside that order. Eames J gave detailed reasons at the time that he made the order and those reasons were not challenged in any way. Accordingly there can be no doubt that the order was properly made in the public interest at that time. Nothing has occurred since then to justify any different approach at this time to the publication by any means of any written or printed material made at any time by the reviewee. Accordingly, I do not intend to make any order which will have the effect of varying the order made by Eames J in relation to that matter on the occasion of the last major review in 1998.
In addition, however, Mrs Morrish, on behalf of the Attorney-General, submits that the names of the victims of the reviewee and their families and any material that would tend to identify them should be suppressed. It should be observed that by the use of the word “victim” in this context, Mrs Morrish includes the deceased child, her family, and the person who was with her at the time that the deceased child was abducted by the reviewee.
In relation to the victims, Mrs Morrish submits that the administration of justice requires that the victims, who request their right to privacy to be respected, be so respected, and that they be given the protection of such privacy. She submits further that it is in the public interest to provide such protection, for fear that victims will be deterred from participating in and expressing their views in proceedings such as these, by reason of concern by them that to do so will expose once them again to trauma, embarrassment and grief.
However, subject to the suppression of any material that may identify the victims of the reviewee, Mrs Morrish submits that there should be no further suppression of any matter arising in the proceeding and, in particular, that there should be no suppression of the name of the reviewee nor of the fact or the subject matter of these proceedings.
Dr McEvoy submits that the order for suppression under s.75 of the Act should go no further than the order made previously by Eames J. Although he concedes that the court does have jurisdiction to suppress identification material relating to the immediate victims, he submits that to do so in circumstances where their names are already in the public domain because of previous publicity would be curious in the extreme and of uncertain effect.
In that regard it appears to me to be clear that s.75 can apply only to evidence, documents or other material put before the court in this application and not to other separate material which may be in the public domain by reason of publicity given to the reviewee over a period of 35 years or more.
I accept that s.75 of the Act is wider than ss.18 and 19 of the Supreme Court Act in that an order of suppression may be made “in the public interest” under the Act whereas, in other proceedings, suppression orders may be made only in the circumstances mentioned in s.19 of the Supreme Court Act.
However, both the Supreme Court Act and the Act recognise that there may be circumstances in which, by reason of the presence of some important public interest consideration, a need arises to suppress the publication of some part of the evidence given in what would otherwise be a publicly conducted proceeding.
It must also be understood, however, by the wording of the relevant sections in both Acts that the inappropriate use of suppression orders has the potential to jeopardise both the fact and the perception of the transparency, and the justice of processes in these courts, whether they be in civil or criminal matters.
The principle of open justice is deeply entrenched in our law. It rests upon a legitimate concern that, if the operations of the courts are not on public view as far as possible, the administration of justice may be corrupted. A court is open when at least members of the public have a right of admission. Throughout this proceeding the public have had a right of admission. From this it may be thought ordinarily to follow that the media in their various forms are also entitled to communicate to the whole public what that public has a right to hear and see should they attend in court.
In John Fairfax & Sons Pty Ltd v The Police Tribunal (NSW), McHugh JJ.A., as he then was, in referring to the common law, said,[2]
“The fundamental rule of the common law is that the administration of justice must take place in an open court. A court can only depart from this rule when its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom.”
[2]John Fairfax & Sons Pty Ltd v The Police Tribunal (NSW)
Of course, that broad statement of the common law position must be qualified in Victoria by the statutory language used in s.75 of the Act and, insofar as it is relevant, the statutory language used in ss.18 and 19 of the Supreme Court Act. That said however, it is apparent that s.75 modifies the common law rule in circumstances only where it is clearly established to be in the public interest to do so.
It is obvious that in many cases under the Act it is in the public interest, perhaps by reason of the necessity for successful reintegration into society of a person who has suffered a serious mental illness or for other good reason, for such orders to be made. Orders are made regularly in proceedings under the Act suppressing identification of the person the subject of an order or identification of the name of the victim or the address of that person’s relatives or of victims. However, in my experience, even in such proceedings, the public interest rarely if ever requires a blanket suppression order to be made.
In the circumstances of this case, it is, in my view, certainly not appropriate that an order such that sought by Ms Randazzo be made. I accept the weight of concern expressed by Professor Mullen and Dr Thompson about the effect of past inflammatory, irrelevant and misleading information that some sections of the tabloid media and some sections of commercial talk-back radio may have engaged in, both in other cases and in relation to this case. I accept their legitimate concern that the important public functions of the Thomas Embling Hospital are not assisted by the occasionally regrettably shallow and inaccurate reporting which the past demonstrates is sometimes the case in relation to its activities. It is, without doubt, regrettable indeed that the function of what is regarded by those who understand the work of that hospital as being a world leading institution, have on the material before me sometimes been misrepresented by some sections of the media.
The question of whether any rehabilitation of the reviewee may be set back severely by publicity of the type previously encountered is, indeed, as submitted by Ms Randazzo, an issue to be considered.
As I have said, it is submitted also that not merely would there be adverse impact upon any reintegration of the reviewee into the community or elsewhere, but there is a potential hardship which could be done to other persons who are present at the Thomas Embling Hospital should it be the case that I direct that he (the reviewee) be transferred there. There are many persons in that hospital who are seeking to reintegrate into the community and it is indeed arguable, as Professor Mullen has argued, that publicity of a certain type which might be associated with this review might have the effect of impinging upon their ability to do so. It has been submitted that that would not be in the public interest. All of those are significant considerations.
In the event that I were to make an order that would have either the effect of releasing the reviewee from all detention or of significantly reducing the nature and type of the supervision and/or detention that he is presently subject to, then it might be arguable that the publicity would have such impact both on himself and on other persons that it could be in the public interest that some order under s.75 of the Act should be made.
However, that is an argument that needs to be had on another day if such a circumstance arises in the future. As stated above, I do not intend to order that the reviewee be transferred from prison custody to the Thomas Embling Hospital, or that his custodial supervision order be varied in an way.
Furthermore, there is evidence before me, given by Professor Mullen, in relation to the possibility of reintegration of the reviewee into the community, to the effect that any such release, if it is to occur, is not likely to occur in the foreseeable future.
Nevertheless, having recognised that the concerns expressed by Dr Thompson and Professor Mullen are legitimate ones, the question is whether the public interest which is associated with those matters, or the public interest which might be thought to justify suppression from publication, is nonetheless outweighed by another public interest and that is, that the public has a right to know the nature of the proceedings and to have information, which is hopefully accurate, as to what matters were considered by the court in hearing a major review of this kind.
It is beyond argument, in my view, that the public has a right to know what factors were held relevant in coming to a decision one way or the other in the review in which I am presently engaged. The question of whether the reviewee should remain in prison and undertake a sex offender program there or be transferred to a forensic psychiatric facility is a matter of public interest that should be dealt with in a transparent manner. He is the last remaining person who has been the subject of the “Governor’s pleasure” in a Victorian prison. There are considerations in this particular case which should be transparently public.
Of course, Ms Randazzo submits that similar sentiments were expressed by Eames J in 1998 and, indeed, they were. She submits that nevertheless the publicity which occurred failed to provide accurate and reliable information being given to the public as to what was under consideration by the court.
On the material before me, which of course may not be all the material published and, indeed, broadcast, or sent out to the public in a variety of ways about the review on that occasion, it is, indeed, arguable that the public was not entirely accurately informed about the nature of the application before the court. Much of the publicity I have seen was sensational and appeared to have little detail of the nature of the considerations given by his Honour to the matter before him. I make no finding about that. However, even if that is so, it is hardly a reason, in my view, to suppress information in the future.
First, of course, there is no reason to say that the public should be excluded from information of this nature merely because some members of the media may in the past have demonstrated a lack of understanding of the process in question or, indeed, as it is submitted by Ms Randazzo, failed to responsibly and accurately report what has occurred. There are many intelligent and responsible persons associated with the media who can be relied upon to provide accurate reporting of such matters and it should not be assumed that they will not do so.
Secondly, it should not be assumed that the public are not discerning about the media or that they do not scrutinise what is put before them.
Thirdly, on balance, in the circumstances of this case, I have no doubt that the wider interests of justice are served by the public being allowed to have as much publication of this hearing as is consistent with the interests of the public in the proceeding; that is, rather than having the hearing conducted in effect in secret, notwithstanding that the court has been open to the public. Accordingly, I do not accede to the submission of Ms Randazzo.
I turn now to the issue of whether or not identification of the victims should be suppressed for publication as sought by the Attorney-General. As stated previously, the welfare of the victims was a matter of considerable concern to me at the commencement of the hearing and remains so.
It is regrettable, indeed, that the otherwise entirely sensible amendment made to the Act in 2002, which requires major reviews to now take place on a regular basis after the nominal period of 25 years, has the effect that, in some cases, such as the one before me, the relatives of the deceased and others associated with the tragic events of this case are now traumatically reminded of those events by such recurring reviews. No doubt, a day does not pass in the lives of the family of the deceased child when they do not remember the dreadful events which occurred now so many years ago. The pain that those families suffer is clearly exacerbated by the review process, as is so amply demonstrated on the material before me.
Dr McEvoy has submitted on behalf of his clients: “In the circumstances of the case, the newspapers are mindful of the need to exhibit a sensitive consciousness to the interests of the victim’s families and to take care to minimise any harm to them from publicity”. I earnestly hope that the instructions given to Dr McEvoy in this regard are taken sincerely by his clients but, of course, Dr McEvoy can speak only for his clients. There are many others in the media who may have an interest in publication of proceedings be it by way of newspaper, magazine, radio, television or internet publication.
As stated earlier, I do not intend to set out the relevant details and concerns of the victims here. Suffice to say, I am satisfied that their circumstances are such that some restriction is necessary upon publication.
I accept the arguments advanced to me by counsel for the Attorney-General that the administration of justice and thus the public interest does require that victims not be deterred from participating in proceedings and, in particular, in these proceedings, as is their right and entitlement under the Act. I accept the argument advanced by Mrs Morrish that they should not be deterred from expressing their views before a court considering issues such as those now before me for fear that to do so will expose them to additional and extended trauma, embarrassment and grief.
On balance, and in the particular circumstances of this case, it appears to me that there should be partial suppression of various matters in relation to the victims. I have given anxious consideration as to whether the name of the young girl who died at the hands of the reviewee should now be suppressed from publication. In the end result, and taking into account the fact that her name has been published on numerous occasions in the past, and taking into account the fact that any order I make can be only in relation to the proceedings which have been before me, I do not propose to make any order in suppression of her name.
I accept that the publication of her name will no doubt once again cause grief for her family. Nevertheless, it must be accepted that any publication related to the events which bring this matter before the court now will cause them grief. Endeavours must be made to minimise their grief but I do not consider that any good purpose is served by suppressing publication of a matter that has been the subject of much publicity over the period of nearly 35 years.
There are, however, good reasons why the name of the then boy who accompanied her should not be published. Those reasons are related to his health and his wellbeing and the material which is before me demonstrating the deleterious effect upon him of previous publicity, which matters are of great concern to me.
There are indeed good reasons why the family of the deceased and her family should not be subjected to gross intrusion into their grief by their names and places of residence being published.
Accordingly, I propose, and I might say I will entertain further submission on the precise wording of the order, but what I propose to do is to order that, pursuant to s.75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, and pursuant to ss.18 and 19 of the Supreme Court Act 1986, until further order no person shall publish or cause to be published or broadcast by means of radio or television, Internet or any other means: (a) any written or printed material made at any time by Derek Ernest Percy or make any comment upon any such material and, (b) the name, address or other identifying material relating to the witness who was present at the time Yvonne Tuohy was abducted by Derek Ernest Percy, or of their respective families.
The Confirmation of the Custodial Supervision Order
I turn now to the reasons why I conclude that the custodial supervision order should be confirmed and why I conclude that the reviewee should remain detained at Ararat Prison and not transferred to the Thomas Embling Hospital.
First, it is correct, as submitted by Mrs Morrish, that most of the facts as found by Eames J in the course of the major review of 1998 are still applicable and have not been challenged by evidence led before me.
In particular, the issue of whether the reviewee continues to suffer from violent sexual fantasies remains a most significant issue in terms of the question of whether the reviewee is a serious endangerment to the public.
In the course of his decision, Eames J said:
“In my opinion, an examination of the 1969 and 1971 material, together with knowledge of the facts surrounding the killing, tend to confirm that not only was Mr Percy very dangerous at that time, he remains so because the underlying sadistic condition was then, and remains now, deeply entrenched. He has received no treatment of any kind which might have changed that situation. He has shown no real interest in having such treatment.”
(I interpolate there that, if anything has changed from 1998, it is the possibility only that Mr Percy may now be showing some interest in having such treatment.)
“He has demonstrated no significant remorse or anxiety or at least none which I find credible as to the circumstances which caused him to kill. He has not sought to gain insight into those matters save to a very superficial degree in an attempt to satisfy or divert those seeking to explore the issues with him for the purpose of writing reports which he knows might assist his attempts to gain transfer out of prison as a step towards ultimate release. In considering whether it is appropriate to draw the inference that the aberrant sexual and sadistic fantasies to which Mr Percy was prone until 1971 continued thereafter, and are indulged by him today, it is appropriate, in my opinion, that I have regard to the fact that Mr Percy chose not to give evidence before me. Whilst there is no onus of proof resting on Mr Percy, the evidence of the psychiatrists, which I have discussed above, suggests that it is likely that the fantasies were deeply entrenched by 1971, and would have continued thereafter. The evidence of the psychiatrists satisfies me that, if such fantasies are held today, and are not controlled, then Mr Percy would represent a serious danger to the public should he be released. The one person who is able to say whether he does or does not hold those fantasies, today, is Mr Percy. Although he has stated to psychiatrists that he has not held the fantasies since about 1971 at the latest, he has absolutely resisted any attempts to allow them to test that assertion.”
The evidence given before me by both of the highly qualified psychiatrists who have done so differs little from that given before Eames J in 1998. Dr Lindsay Thompson gave evidence before me. I accept that she is a highly qualified forensic psychiatrist. She interviewed the reviewee on 20 August 2003 for the purpose of this review before me. The reviewee told her that his fantasies “may have ceased pretty soon after or straight away after the index offence”.
Dr Thompson challenged the reviewee in the course of her discussion with him with the information that he was still writing about these fantasies in 1971. The reviewee, however, denied having any such interest at this time and, in particular, the reviewee denied to Dr Thompson a number of aspects of the fantasies which were clearly reported by the evidence of Dr Bartholomew upon the trial of the reviewee.
Dr Thompson stated that, although the reviewee engaged very well with the interview process, he did so only until such time as the issue of his sexual history, fantasies and index offence was raised with him by her. Dr Thompson observed “an immediate change in his presentation and he became passive and unforthcoming when such matters were raised”. She gave evidence before me that, when she referred to sexual matters in the course of her interview, “It was as if a curtain descended”.
Dr Thompson said in the course of her evidence that her view was that, if the reviewee was released into the community on a non-custodial supervision order, there would be the potential for serious risk to the community. She said there was “strong likelihood that the fantasies are still present”.
Likewise, Professor Mullen, who I accept is a highly qualified forensic psychiatrist, with extensive experience in the area, and who has had a number of contacts with the reviewee over the past decade, gave evidence before me. I might add that Professor Mullen, in giving his evidence, referred to the extensive experience of Dr Thompson in dealing with sexual offenders in a prison setting. In giving his evidence before me, he said that, on all of the information before him, the reviewee, in his opinion, would be a serious endangerment to the public if he were to be released on a non-custodial supervision order. Thus he agreed entirely with Dr Thompson in regard to this issue.
Although Professor Mullen is of the opinion (indeed, the opinion is unanimous before me from all expert psychiatric witnesses) to the effect that the reviewee does not now suffer from any identifiable mental illness, Professor Mullen stated that the reviewee suffers from a gross abnormality of sexual orientation and desire. He said he “quite simply is a man whose sexual desires have been directed towards children.” He has engaged in extensive sadistic fantasies and tragically acted out those fantasies. He suffers a number of sexual anomalies, including sexual excitement in relation to excretion. Professor Mullen said, further, that the offending arose out of a long period of detailed fantasies, which involved the killing and maiming of children and that the detainee acted on fantasies which he had already articulated and written down. Professor Mullen said, “That leaves us with obviously very grave concerns about the possibility of that scenario being repeated”.
Professor Mullen was asked as to his opinion in relation to the statement made by the reviewee to him and others that the fantasies had abated. Professor Mullen said this:
“We cannot have direct access to the mind of someone else. All I can say is that, even if Mr Percy has found ways of distracting himself from such ideas, until I have a great deal more knowledge about him, the way he thinks and what has happened to his sexuality, I think one must remain sceptical that these (referring to the fantasies) have evaporated.”
In the course of giving his evidence before me, Professor Mullen confirmed that the opinions and the evidence given by him before Eames J in 1998, were in his view still applicable.
Professor James Ogloff gave evidence before me. He is a clinical forensic psychologist who I accept is highly experienced regarding sexual offenders. Professor Ogloff has made himself familiar with the documentation in this matter and, in addition, has conducted three clinical interviews with the reviewee between February 2002 and October 2003.
Professor Ogloff gave evidence about his observation of a number of inconsistencies between the information given to him by the reviewee in the course of the interviews and the evidence given before the court at the time of the trial of the reviewee.
Professor Ogloff in his report stated as follows:
“The evidence in this matter is clear. Based on Mr Percy’s revelations to psychiatrists following the murder and based upon his own drawings and detailed notes obtained, Mr Percy recalled developing bizarre fantasies while he was in his middle teenage years. He admitted this to me during the interviews. It is clear that Mr Percy was still experiencing these fantasies at the time of the murder, given that some of the acts he forced upon the victim corresponded to his recorded fantasies. Further, following the offence, it was learned that Mr Percy had once again been recording his fantasies in 1971. Mr Percy admitted that but stated that his fantasies left just as quickly as they had occurred. In my initial interview with Mr Percy he stated that the fantasies were gone by the time he was about 23 or 24 years of age. In the final interview he stated that the fantasies disappeared somewhat earlier than that.
Of concern, Mr Percy now denies or is unaware of any relationship between the aberrant fantasies and sexual arousal, yet considerable evidence exists that Mr Percy very clearly obtained sexual gratification from the fantasies. When pressed, Mr Percy states that he simply does not know or does not recall the relationship between the fantasies and his sexual arousal.
Over the years Mr Percy has been reluctant to discuss the exact nature of the fantasies he had and he has denied the existence of any similar fantasies since the early 1970s. Based on the information available, we know that Mr Percy had the fantasies for at least five to eight years. Doctor Ball reported that Mr Percy admitted becoming ‘increasingly preoccupied with bizarre sexual fantasies’ and that he ‘used the fantasies as an aid to arousal during masturbation’. It is also readily apparent that he acted upon the fantasies, the results of which proved fatal. Moreover, so strong were the fantasies that in interviews with the police and psychiatrists following the murder, Mr Percy described his actions in getting out of his car and going after the victim and the young boy variously as an ‘urge’, ‘impulse’ and a ‘compulsion’.”
Professor Ogloff concluded this section of his report with this statement:
“Taken together, it would be very unlikely that the fantasies would have simply disappeared.”
The evidence given by each of Dr Thompson, Professor Mullen and Professor Ogloff leads to the conclusion that there is a high degree of probability that the grossly aberrant fantasies which were, beyond doubt, suffered by the reviewee in 1971, continue to be a significant factor in his thinking.
There is no additional evidence before me which would entitle me to draw any other inference than that drawn by Eames J in 1998 that, in the face of such evidence and in circumstances where the reviewee has not chosen to give evidence before me to rebut such evidence, the inference can be drawn that the apparent sexual and sadistic fantasies to which the reviewee was prone until at least 1971 continued thereafter and have continued to the present time.
In such circumstances, it is beyond argument, in my view, that his release from custody would seriously endanger the public. The question now arises as to whether under s.35(3)(a)(ii) of the Act I should make any order varying the place of custody of the reviewee from a prison to the Thomas Embling Hospital.
It is appropriate to note, as I have, that at the commencement of this review the reviewee through his counsel submitted that he should be transferred to the Thomas Embling Hospital.
Professor Mullen and Professor Ogloff, for reasons associated with the necessity to endeavour to provide treatment to a person who has been found not guilty of a serious offence on the ground of insanity, contend that this is an appropriate course, although they have differing views as to the period for which this might become necessary. In the interests of having this decision handed down within 24 hours of final submissions, I shall not spell out in full detail their evidence, but in summary Professor Mullen holds a view, as a matter of principle, that persons who have been found not guilty of a serious offence should not be detained in a prison, but should have the opportunity to undergo therapeutic treatment in a forensic psychiatric setting.
There is, of course, much to commend this view, particularly in relation to any such jury verdict in the future. However, it must be remembered that the reviewee is now stable and happy in the prison system having been there for many years already. However, in addition Professor Mullens was of the view that the reviewee should have the opportunity to undergo a therapeutic treatment regime designed to deal with his psychological‑sexual problems. He did not consider that in practice it would be possible to provide the reviewee with an effective program in prison. He said:
‘That would require resources and expertise about a very rare and difficult sexual deviation to treat which I do not think can be expected of the treatment services with the Correctional Services. I think if we are to do anything to change or even ameliorate the problems which led to this tragic crime it would have to be in practice at Thomas Embling Hospital.”[3]
[3]See transcript p. 204 – 205.
Likewise, Professor Ogloff considered that the reviewee required assessment in the Thomas Embling Hospital for consideration of therapeutic treatment, although he did not necessarily consider that any transfer to the Thomas Embling Hospital would be permanent, or indeed in excess of six months if after assessment of the reviewee, treatment was not considered to be feasible. He said:
“It is an understatement to say that this is a unique and disturbing case. Mr Percy was found Not Guilty by Reason of insanity in 1970 for an offence that involved the abduction, sexual assault, mutilation, and killing of a 12 year old girl. He also tried to abduct an 11 year old boy. The horror of the situation cannot be overstated and is amongst the worst I have seen in almost 20 years of work with adult offenders.
It is agreed that contemporary approaches to forensic crimes mental health would not result in clinicians finding that Mr Percy ever met the criteria for a major crimes mental illness and that he would not have been found Not Guilty by Reason of Insanity if the offence occurred today. Mr Percy does not have a major mental illness at the present time.
It is apparent and not disputed that Mr Percy has a Paraphilia, namely Paedophilia and Sadism. He demonstrated disturbing and entrenched aberrant sexual fantasies that were in existence for at least five to eight years surrounding the time of the offence. Although he denies the presence of such fantasies at this time, the likelihood that they abated entirely is unlikely. Mr Percy has never received long-term ongoing treatment of his sexual disorder.
Mr Percy has been described as a loner and he is emotionally withdrawn and distant. He engages in activities in isolation and does not engage with others. His range of emotions is restricted. The information suggests that these conditions have been present over the course of his life. Indeed, even on the night before the offence, Mr Percy went to a drive-in theatre alone. Such behaviour is atypical for a 19 year old sailor on weekend leave. It is likely that Mr Percy has a personality disorder, namely Schizoid Personality Disorder ... “
Professor Ogloff made the following recommendations:
“1.Without concrete evidence to the contrary, Mr Percy continues to present a high level of risk for violent sexual re-offending. As such, he requires ongoing detention in a secure facility.
2.Mr Percy requires an ongoing period of treatment with an experienced psychologist or psychiatrist to begin to address his sexual disorder and level of risk it represents. As such, it is my recommendation that Mr Percy be offered the opportunity to engage in such treatment. This treatment should be commenced in an environment, such as that in the Thomas Embling Hospital, where there is a supportive treatment milieu. Ideally Mr Percy could be admitted to Thomas Embling Hospital for a trial period of several months. There, he could be treated on an individual basis by a highly trained and experienced doctoral psychologist or psychiatrist. In turn the doctor treating him could be supervised by another senior clinician. This arrangement would enable a more complete assessment of Mr Percy. It would provide a test of whether Mr Percy is capable of engaging in any kind of meaningful therapeutic interventions over time. After the trial period, should the treatment not be seen as feasible, or if Mr Percy does not adapt to life in Thomas Embling Hospital, he could be moved back to prison.
3.If it is not possible for Mr Percy to change his place of custody to the Thomas Embling Hospital, perhaps he could be transferred to the program prison that is being built by Corrections Victoria. It is my understanding that the facility will have programs for sexual offenders. At this point, though, the opening of the facility is far-off and the nature of treatment staff and programs available is unknown.”
Dr Thompson, on the other hand, contends that, as the reviewee suffers from no psychiatric condition he should be subject to a sex offender program provided by a prison rather than a psychiatric hospital. She gave evidence that the reviewee suffers from paraphilia and that condition can be treated by the prison sex offender program. He is, she said, “manifestly different from the vast majority of patients at the Thomas Embling Hospital who are clearly unwell and psychotic.” It should be observed that the unanimous view of all of the highly qualified psychiatrists and psychologists who gave evidence before me is that, both as a matter of humanity, and of principle, and as a matter of professionalism on their part, the reviewee should be provided with an opportunity to undergo such a therapeutic program.
There are however real issues as to whether he has had any real desire and/or opportunity to engage in such a program in the past. There is ample evidence before me that in the past the reviewee has been reluctant to engage in psychological discussion of his offence, or of his sadistic fantasies. Nevertheless, there is some evidence before me that, irrespective of what has happened in the past, the reviewee is now willing to undergo such a program and to engage in it. Whether that is a genuine desire or is manipulative behaviour designed to open the possibility of his release in the future is of course far from clear. There is evidence before me, that Corrections Victoria are prepared to provide such a program. Indeed, Ms Owen, a forensic psychologist and manager of the Corrections Victoria Sex Offenders Program, gave evidence before me, and in effect undertook to ensure that the reviewee is offered the opportunity to ngage in such a program in the near future.
As I have stated, subsequent to this evidence being given, the reviewee gave instructions to his counsel that he no longer sought to be transferred to the Thomas Embling Hospital. Of course, the instructions that he might give to his counsel, although relevant to the decision that I have to make, cannot affect the end result that it is the decision of the court as to the most appropriate course to be followed.
In my view, the appropriate course is for Corrections Victoria to endeavour to engage with the reviewee in a sex offender program of the type they have agreed before me to provide to him. This is a program which will be provided in prison.
It is far too early to assess whether any progress can be made in this regard. However, that said, I accept the evidence given before me that Corrections Victoria has an established regime for treatment of sex offenders and for persons suffering from psycho-sexual disturbances, although perhaps not as extreme or entrenched as that suffered by the reviewee. I accept the evidence given before me that expertise in this regard has developed apace in recent years and that there have been recent changes which will enable long-term prisoners to participate in such a program and that a place will be found for him in such a program. I accept the evidence of Ms Owen that a custom made treatment regime can be designed for the reviewee and will be provided to him if he proves to be amenable to treatment.
There has been some assessment of him already in the prison. To a limited degree, the reviewee has engaged with a therapist, Margaret Lancaster. Thus, the evidence before me is that resources for providing appropriate therapy are available in the prison system.
The consequence of the program being provided in prison are that the circumstances in which the reviewee presently lives and engages in his hobbies and, indeed, his employment, will continue without disruption to his life.
Certainly I accept the evidence given before me by Professor Mullen and by Professor Ogloff that the Thomas Embling Hospital has the capacity to provide a sophisticated sex offender program on an individual basis. I accept that there are good reasons as a matter of principle why a person who has been found not guilty of the serious crime of murder on the grounds of crimes mental impairment should not be detained in a prison.
However, taking into account the fact that Corrections Victoria will provide such a program, and notwithstanding the serious issue of principles the reviewee being now the only person in a Victorian prison who has been found not guilty of the crime of murder on the ground of insanity, the transfer to the forensic psychiatric facility at the Thomas Embling Hospital is, in my view, not appropriate or justified.
If the reviewee genuinely engages with those who are now prepared and, as I have said, have in effect undertaken to this court to provide, both psychiatric and psychological assistance to him in the nature of a sex offender program, it may well be that at some further review it will become a matter of serious consideration as to whether such a transfer from prison to a psychiatric hospital should take place. That is all in the future and depends greatly upon whether the reviewee is prepared to engage with his therapists and upon whether such engagement reveals any possibility that the serious danger which the reviewee now presents to the community can in any way be reduced.
However, I do not consider a transfer from prison to be appropriate at this time. In all of the circumstances I do not propose to direct that there be a further review in a lesser period than an interval not exceeding five years as required by s.35(1)(b) of the Act.
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